A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

This means that it will not only give heft to plaintiffs who seek to overturn state actions that substantially burden religion. It will also apply to civil actions between private citizens — including companies — giving a potential fig leaf defense to obviously noxious and discriminatory behavior.

The cliche example floating around is the bakeshop being forced to make a wedding cake for gay couples despite religious objections to the wedding itself. There are far, far more substantial issues in play than dessert, but even if we keep it at the level of the admittedly less-than-life-or-death, it’s easy to see the problems here.

While racial animus is less accepted today, it’s still sincerely held by many and religiously grounded for some. Just because that’s passé and anti-gay sentiment is still held by a substantial portion of the population, is the legal and moral question any different? Is the discriminatory potential — and, let’s be frank, intention — clear yet?

Imagine bakeries with “No Interracial Couples” signs in their windows, or even an implicit policy to that effect. Offended yet? Even though this might be motivated by sincere religious belief? Would you object to a law that tells the victims of such discrimination that state courts are likely closed to them?1)The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle. Good, that means you’re a decent human being.

Now, let’s get out of the bakeshop, because this will likely grant a hall pass for discrimination in far more serious contexts.

There is no federal protection for LGBTQ folks and no statewide protection in Indiana. Even in the towns where there are protections, however, this bill essentially guts those — a transparent intent behind the bill.

Thus, imagine hoteliers turning away LGBTQ couples. In the context of racial discrimination, this was decided 51 years ago, but it’s now an open question in Indiana.

Imagine realtors refusing to work with people whose lifestyles they find morally objectionable. Imagine bankers turning down loan applicants and even would-be account holders. Imagine teachers refusing to meet with parents in same-sex relationships.

All of these might now be legally sanctioned as long as they are motivated by religious (rather than secular) animus.

These acts of discrimination need not even be grounded in religious tenets that are central to one’s faith. The act clarifies:

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Talk about a free pass. Any exercise of religion counts, even if it’s as transparently silly as a Pastafarian head covering — but, you know, used for discriminatory rather than parodic effect.

This means that, except where state or federal law provides otherwise, even the thinnest veneer of religious objection will excuse wanton, explicit discrimination. It also means that these religious fig leaves will also force a plaintiff and/or the state to re-establish how compelling the state interest is in all the laws that ban discrimination.

likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting, in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.

In other words, this bill will wreak havoc on the legal order in the state of Indiana, and the stakes are heck of a lot bigger than wedding cakes.

Arkansas-based Walmart — which may make more money from both homophobes and from LGBTQ people than any other company in the country — has weighed in against that state’s bill. If it passes, though, I wonder if they’ll try to find a way to argue that their religion forbids collective bargaining.

The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle.

After all, roughly 92% of American children are getting their MMR vaccine. How do we deal with the other 8%? This matters to everyone because vaccines are not 100% effective, and infants and some other folks can’t get vaccines for health reasons.

1. Eliminate, or at least harden, non-medical exemptions for school students

This is good policy, and it should be adopted by the other 48 states. If your personal or religious beliefs are so strong that you insist on ignoring the advice of the collective, virtually unanimous opinion of medicine writ large, fine. You have to find another way to educate your children, at your own expense.

It’s getting some pushback from vaccine fear mongers, of course, but also from libertarian types. Here’s the thing, though: You don’t get to take advantage of a public service, provided at public expense, and then tell the body politic that some very reasonable conditions placed on that service are a violation of your individual liberty.

It’s against policy to smoke anywhere on a K-12 campus in most if not all states — including in North Carolina, for G-d’s sake — and this infringement of liberty has come about with broad if grudging acceptance even among the gravelly-voiced crowd.

If you believe in this extreme of a version of personal liberty, you’re probably a follower (at least indirectly) of Ayn Rand. So take that reasoning to its conclusion. Rand didn’t even think public schools should exist. Until we abolish public schools and live in an objectivist utopia, then, there are just some times — from vaccines to seat belts to food safety inspections — that your liberty to do things “your way” might be curtailed.

But, you might say: What about private schools? Won’t all these well-off anti-vax families just pony up to send their kids elsewhere? A number surely will. The state should therefore also make private schools publicize their vaccination policies, exemption rates, and number of confirmed cases of vaccine-preventable diseases per year for the last five years. They should have to share this, in writing, with all current students’ parents and with any potential new students’ families.

A number of softer-hearted souls have proposed merely hardening the rules on personal exemptions — making it harder for parents to get the forms, making them resubmit every year, making them complete online learning modules, and so on. This has been partially effective, but it does not go far enough in my view.

“Resisting vaccination isn’t a matter of laziness; it’s actually time-consuming and expensive,” writes Whet Moser. Which means the same kind of parent who clings to anti-vax believes is also the kind of parent who will do “anything” for their kid. (Except, you know, make the single easiest decision a parent can make.) Instead of daring these folks to jump through more hoops, just keep the kids out of public schools, period.

If you want to compromise on the religious exemption, that is more reasonable — or, at least, less subject to the whims of changing opinions. I would, however, add a mechanism for sniffing out sham churches set up for this purpose.

I don’t feel particularly compelled to give on even this point, however. We have all sorts of rules in public schools that might conflict with a sincerely held religious belief, from mixed-gender classrooms to not letting kids get out of biology class because they don’t believe in evolution. If parents want something different on these counts, they have to find a school that meets their beliefs, and putting vaccinations on this list is perfectly reasonable.

2. Medical Isolation

Many people are talking about school policy changes, but I’m also concerned about infection at the doctor’s office — where you’ll find a disproportionately large share of infants and immunity-compromised children.

Thus, I propose that all medical offices have to post their vaccination policies prominently, and those caught not sticking to theirs are subject to a serious fine.

Imagine walking into the office and seeing this:

Statement of Office Policy on Vaccinations

X

This office only accepts patients that are up to date on their vaccinations (barring medical exemptions), and we verify.

This office only accepts patients that are up to date on their vaccinations (barring medical exemptions), but we do not verify.

X

(If either of the above is checked) This office has after-hours "catch up" vaccinations.

This office accepts patients regardless of their vaccination status.

In today’s climate, that would be very reassuring to see. And if I make an appointment, show up, and instead it’s Box 4 that’s checked? My kid and I are going elsewhere.

If I discover this, I should leave, and I shouldn’t be forced to pay a cancellation fee. Such an office should also have to get written assent to this choice from all patients before they can bill for dollar one.

Box 2 would probably work well enough as long as patients/parents have to sign a statement, under penalty of perjury. Which brings up another important point: Verification would work best if states require that all immunizations be submitted to the state database. Vaccinating doctors are not required to submit this information in some states, such as (I’m very sorry to see) California, so it would be a good bit of extra work to be a Box 1 office.

I would probably be comfortable taking my child to a Box 2 medical office, but he’s 10, vaccinated, and healthy. If I had an infant or other especially vulnerable child, though, I’d really try to find a verified-immunization office.

It would be hard to find a doctor who’s willing to advertise to their patients that the unvaccinated are explicitly welcome in their office. Sure, even the occasional anti-vax quacks can be found, but it’s becoming hard to find doctors who will even see anti-vax parents. (Even without a mandate, if I were a doctor, I’d post a prominent “must be vaccinated” notice in my office, and I suspect we’ll start to see this soon in any case.)

So that’s my proposal: No public school without vaccinations or a valid medical excuse, and mandatory notice about medical office policies.

If you’re not vaccinating your children, you’re free-riding on herd immunity (to say nothing of harming your own child!), and the herd should try to limit the damage that your adorable little disease vector can do to the rest of us.

As with many others, I’ve been on an anti-anti-vax rampage on social media.

(I should perhaps rethink my strategy, but it’s not clear that there is a good strategy for dealing with someone once they’re in that camp. It’s not the first such example, either. How do you argue with a Scientologist? How do you convince congressional Republicans that we won’t eliminate the deficit without either raising taxes or seriously harming the economy? There aren’t a lot of good solutions here.)

Thus, one of my more libertarian friends (who gets all her kids’ shots, thank G-d, but who thinks you should use an alternative vaccination schedule that delays vaccinations) posted on my wall to ask if I would really support an infringement on individual liberty in the form of forcing folks to get vaccinated.

To which I say: Hell yes! I would support it, and it would even be constitutional. Which is not the same thing as supporting such a policy as politically pragmatic — but I have an answer for that, too.

As for my personal preference for whether we should force people to get vaccines against airborne pathogens — when they have been proven safe and effective, winning near-universal support among medical experts: Yes, I do want to live in that world.

I suppose I’d allow an exemption for truly anti-modern-culture isolationists who agree to keep away from broader society. (The Amish seem not to qualify on either count, by the way, with the majority getting vaccinated AND their willingness to participate in commerce with outsiders. Zippers no, shots mostly yes. Who knew?))

But in the general population — among those healthy enough to be vaccinated, of course — yes, I would support forcing folks to get their shots. If you’re not willing, I would gladly levy a stiff fine. (I mean, I’m not proposing that we lock unvaccinated families in a tent inside a hospital in Newark where they have to poop in a bucket or anything. That would be inhumane.) This would be especially effective if it had a high ceiling and explicit instructions to judges that it should be proportional to income — since, you know, being an anti-vaxxer seems primarily to be a disease of privilege.

The Supremes ruled on this over a century ago, by the way, in Jacobson v. Massachusetts. In 1905, the court ruled that Massachusetts was within its power to fine Jacobson five dollars (equivalent to roughly $130 today) for failing to get vaccinated, at zero cost to himself, against smallpox.

The Wikipedia article is mostly accurate — relative to my skim of the case (IANAL, as always) — but read some of what the Supremes have to say on the matter. Pretty convincing, and definitive, stuff:

… the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.1)Court footnote 7

Not a lot of wiggle room left there. Watch them apply it to this specific question:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,—and nothing is asserted or appears in the record to the contrary,—if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. …

If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,—if nothing more could be reasonably affirmed of the statute in question,—the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.2)Court footnote 8

The court goes on, at length, in a way that might make the Ayn Rand followers of the world a bit uncomfortable. I feel no obligation to assuage their feelings, however. If what you’re doing might harm or kill me, the state has a right to stop you from doing it — even if it’s something as banal as forcing restaurant employees to wash their hands. Ditto foolish self-harm, such as with seat belt and helmet laws.

The decision is also a fantastic read for some historical context on exactly how far back the consensus on vaccines really reaches. For instance:

[Jacobson’s arguments] in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.3)Court footnote 10

It is therefore the law of the land that, when confronted with a deadly infectious disease that is reliably and safely vaccinated against, a state or municipality may affirmatively compel the populace to be immunized.

This has been the definitive law of the land for 110 years, and the medical consensus behind — and safety of — vaccines has only increased.

This decision is many times more remarkable because it is from an era (the start of the Lochner era — Jacobson was published just two months before Lochner v New York) where the Court had a much, much more restricted view of what the state is allowed to do under the Constitution. This is the same session when the court held it unconstitutional for a state to tell employers how many hours a worker could work, and yet it held mandatory inoculation against deadly disease to be fully constitutional and consistent with American values.

I agree on both counts — constitutionality and consistency with our values. This is doubly so when it comes to children. They’re not your property. If you starve them or assault them or psychologically torment them, the state can and should intervene.

On the affirmative side, you have to send them to school or educate them in some comparable way, period; the value of education is not up for debate. When parents won’t do what’s demonstrably in a child’s best interests, the state can intervene and — when the risk is serious — should seriously consider doing so.

Thankfully, there are less invasive policy choices that would likely lead to the same desirable outcome of a return to near-100% childhood vaccination. That is the subject of my next post.

[I’m not a sports analyst, and this is not a sports blog. We’re scholars, especially of political communication, politics, and media policy. But I do crunch numbers, and I thought I could help add something to this debate.]

We’ve all spent the last week hearing a lot about Tom Brady’s balls. Patriots fans and Pats haters are fighting online with a viciousness that’s hard to overstate. A good number of you have also seen the use of statistics to try to sort out whether the Pats have a measurable advantage in something that would be directly related to the inflated pressure of footballs — namely, fumble rates. Statistical analysis is only good, however, if the data are correct, if we are testing what we think we are testing, and if we are using the right statistical tools for the job. In this case as in so many, we need more good analysis that asks the right questions and uses the correct data.

Trust the agents of the State. Obey the agents of the State. If agents of the State behave inappropriately, that will be determined later, by other agents of the State. Your appropriate role is not to question. Your appropriate role is to comply.

The words above are fiction. They are a ham-handed attempt at depicting the language and ideology of a fascist state. I’m not a fiction writer, and you can probably tell. The language I come up with when I imagine a fascist ideologue is too brazen. Real fascists would probably be more subtle.

For those who haven’t followed these cases, Tamir Rice is a 12-year-old African American boy who was gunned down by Cleveland Police Officers while holding a pellet gun. The police account of the event did not match disturbing video of the event. John Crawford was shot dead by the Cleveland Police while in a Walmart, holding an air rifle that was available for purchase in that Walmart. A city prosecutor has cleared the officers involved in both cases.

And to Follmer, that should be the final word. Any citizen voicing protest or concern is wrong, and should have to apologize for their wrong opinion. At minute 7 of the interview, Follmer testily replies, “These two were cleared by a city prosecutor already. This shooting was justified, and […] it was a tragedy that it was a 12-year-old, but it was justified.”

This isn’t the first time we’ve heard this sort of language, either. This past August, as the nation grappled with the Mike Brown shooting in Ferguson, MO, Sunil Dutta wrote an Op-Ed for the Washington Post titled “I’m a Cop. If You Don’t Want to Get Hurt, Don’t Challenge Me.” Dutta is a 17-year veteran police officer with the LAPD. Dutta writes:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me.

If you don’t want to get shot… don’t threaten to sue.

It’s good advice, of course. Police Officers are agents of the state. They have the capacity to use deadly force, and they are placed in trying situations every day. As a rule for individual behavior, it is a good idea to be polite to police officers.

But Follmer and Dutta have stepped well past that rule for individual behavior. In the cases of Mike Brown, Eric Garner, Tamir Rice, John Crawford, and far too many others, it is abundantly clear that police officers are not held responsible when they make a deadly mistake on the job. Hell, they don’t even face a trial.

The American Public should be outraged. And Police Officers should be as well. The badge is not a license to kill without consequences. As we’ve seen recently, the justice system is biased against enforcing, or even investigating, those consequences. So we’re left with the weaker tools of public opinion and organized outrage. The police ought to be standing alongside that public outrage, engaging in a dialogue and looking for ways to do better.

The current state of affairs is that Police Officers can be immediately absolved for shooting a 12-year-old boy within four seconds of arriving on the scene, but the officer will then be forced to endure celebrities and citizens wearing t-shirts that call it an injustice. And officers like Jeffrey Follmer think the t-shirts are the problem.

Follmer’s ideology is too brazen for fiction and reality alike. It’s fascism, cloaked in the language of police solidarity. He’s telling us to trust the agents of the state, obey the agents of the state, and don’t dare raise questions when other agents of the state absolve them of wrongdoing. And he wonders why all these protests are happening…

Last week, Techpresident.com published a fantastic interview between Alex Howard and James Windon, President of Brigade.com. You should read it. I’m going to riff on one point in a long, fascinating interview. Please read the interview first, it’s better than anything I’m going to say.

…

Caught up now? Good. Okay, here goes.

I still don’t know what Brigade is going to be. It’s been on the horizon for about 6 months. I’ve kept my eye out. I still have no clue. It sounds a bit like Change.org 1.0 — a social network for civic participation. Change.org 1.0 didn’t work. Neither did Change.org 2.0, 2.1, or 2.2 (variations on an issue blogging platform and a one-stop participatory shop). Change.org didn’t succeed as a business until it stopped trying to be a civic social network and started trying to be a really, really good petition website.

Reading the interview hasn’t left me any clearer on what Brigade is going to be. And I’m going to try to keep an open mind when it launches. But two lines in the interview really stood out (bolded below) :

Q: I mean the fascination with ‘big data’ in the Obama campaign has subsumed the fact that both parties have a ground game. Both parties send people out with mobile apps. Both parties are trying to nudge people to use their social networks to target ads. So the campaigns are all about this. What’s the role of Brigade when the campaigns are all in that space?

A: I think it’s twofold. One, I think it’s about who’s your primary customer. And for Brigade, that primary customer is the citizen. The goal of this is to build a network that can connect citizens. And if we can do that, then we would invite and encourage candidates and elected officials to come on to that platform on the terms of the citizens who are there. So I think that’s one thing. We will ultimately interface with the existing structures of government, we hope. But there’s a difference between building tools for them from the get-go and then trying to plug the lists in, which is what this is really about, list management, versus building a social network.

You mentioned customers. Y’all are not a nonprofit.

A: We’re not a nonprofit.

Q: Where’s the money come from? Right now, it’s coming from funders, but down the road…?

A: I think that our best bet at how we will monetize is through advertising. That’s our best bet at the moment. We believe however that…

It’s become a bit of a cliche to say “if you aren’t paying for the service, then you aren’t the customer, you’re the product.” But it’s also a pretty damn important point.

Let’s think this through, using some other for-profits who operate in and around the non-profit advocacy arena as examples:

Change.org is a free service, used by millions of citizens. But those citizens aren’t Change.org’s customers. Advertisers (mostly non-profits and political campaigns) trying to cultivate new leads from among those active citizens are the customers. Change.org provides a sleek user experience because more users = more business from their customers.

NationBuilder is not a free service. It’s a CRM, used by thousands of campaigns and organizations, who in turn communicate with millions of supporters. Those campaigns and organizations are customers. The millions of supporters are not. NationBuilder works to meet the needs of the campaigns and organizations that pay them. If those campaigns want to send their supporters 50 emails per day, the supporters may hate it, but NationBuilder will make it possible. That’s their job.

Upworthy is a free service for the millions of people who visit the site, or view their videos on the social web. But those end-users are not Upworthy’s customers. Allied organizations, who sponsor Upworthy curators in specific subject areas, are the customers.

That last example, Upworthy, is the most interesting one. Upworthy doesn’t monetize through advertising. And that has led them to track alternate metrics of success — “Attention Minutes,” instead of page views or unique visitors. If Upworthy monetized through advertising, they would focus on maximizing page views and uniques. That’s what pays the bills. But Upworthy monetizes through convincing customers that visitors are deeply engaging, so they started tracking different things.

As Dan Ariely likes to say, “You Are What You Measure” (h/t Daniel Mintz). And, as an obvious corrolary, your metrics are derived from your customer demands.

With all that said, I still don’t know what Brigade is going to be. Right now, it has a big pile of VC money, and a lot of talented people on staff. That’s a nice opening position.

But I find it troubling that the company’s President is referring to citizens as “primary customers.” They aren’t the customers. The advertisers are the customers.

Balancing the interests and needs of citizens and advertisers is one of the serious tensions that Brigade will need to navigate if it is going to succeed. That’s hard to do. And if Windon and company have a plan for it, they’re doing one hell of a job keeping it a secret.

But Olson points out that the fundraising haul is based on some dirty, unethical, that-can’t-really-be-legal-ugh-why-is-it-still-legal techniques. Like (probably) lying about small donations being matched. Like making it near-impossible to unsubscribe. Like auto-selecting the “make it monthly” checkbox, so that unsuspecting donors accidentally give a lot more than they intended to.*

And the broader lesson here is about analytics and testing. It really matters what you optimize for. The DCCC email program is run with a single goal in mind: generate as much money as possible. Period. That’s a reasonable goal. But it can lead you into perverse habits. Habits that turn your strongest supporters and allies into vocal critics. Habits that degrade your image while you open that (digital) bank vault time and time again.

What would happen if the DCCC optimized for two goals? What if they were trying (1) to raise a ton of money and (2) to improve the standing of the Democratic Party brand amongst supporters?

They would have to measure more results. They would need to develop more sophisticated listening tools, which could measure how email recipients view the party organization, and monitor changes over time. They would have to run more complicated email tests, but the DCCC has a huge list and talented staffers. They could pull it off. Their emails would start looking different. Over time, the Democratic Party could potentially become more likable.

If all of this sounds like a pipe dream, take a look at this new slide deck from SumOfUs.org. SumOfUs announced a new metric last week: MeRA (Members Returning for Action). Rather than focusing on the easy measurables like list growth, petition signatures, or donation totals, SumOfUs is going to track success internally based on “the number of unique members who have taken an action other than their first one.”

Why is SumOfUs rejecting donations, signatures, and list size as its main metrics? Because list size =/= movement power. And money raised =/= movement power. And if you perform digital optimization on those easy measurables, you encourage and reward bad habits.

Ever since the 2008 Obama campaign, digital politics professionals have been talking about the value of analytics and the “culture of testing.” Rigorous testing programs can help you optimize tactics, compare the impact of competing programs, experiment with new strategies, and unearth member/supporter preferences.

But if many of the largest political organizations have learned lesson 1 (“you should test things”), they still haven’t begun to grapple with lesson 2: You should think hard about how your metrics match your goals. It really matters what you optimize for.

—–

*Holy hell, that last one is just inexcusable. I’m heading to Home Depot later this week, and ready to buy pitchforks and torches in bulk.

What really happened is the network suspended him primarily for taunting and thereby implicitly criticizing his superiors, but more on that in a bit.

As for whether Simmons should be allowed to call Goodell a liar, Lipsyte insists that, until there’s “a smoking gun that proves when the NFL viewed the Ray Rice video” (emphasis added), Simmons is off base. Until and unless such a smoking gun emerges, Roger Goodell is not a “certified liar”, Lipsyte argues.

Contrast this with what Simmons actually said on his podcast: “Goodell, if he [says he] didn’t know what was on that tape, he’s a liar.” (Emphasis added.)

There is a major difference between seeing a video and knowing what is on the video, and conflating the two is exceptionally sloppy for an award-winning journalist.

To help illustrate: Thanks to several young children, I know a great deal about “Frozen”, despite not having seen the film.

If I watch Frozen this weekend and say, “Wow, I had no idea it would have so much singing!”, I would be a liar. If I were to claim that I had desperately wanted to see the film earlier, but before that point, I had had no way to see the film — you know, as opposed to deliberately having avoided some pretty clear opportunities — I would be a liar. Just like Roger Goodell is a liar. A lying liar who lies.

Goodell fibbing about whether he knew what was on the tape is only part of what Van Natta and Van Valkenburg identify as “a pattern of misinformation and misdirection employed by the Ravens and the NFL since that February night.”

Of course, to accuse someone of a “pattern of misdirection and misinformation” is to call them a liar, albeit using five-dollar words.

Follow those Mortensen and King links (reproduced from Simmons’ column). For those of you who couldn’t stand to watch the video but wanted to know what was on it, Mortensen’s account is startlingly accurate. Again, this is from July and based on his insider access to league sources.

What Peter King wrote should, in hindsight, be viewed as an even bigger deal than what Simmons implies:

There is one other thing I did not write or refer to, and that is the other videotape the NFL and some Ravens officials have seen, from the security camera inside the elevator at the time of the physical altercation between Rice and his fiancée. I have heard reports of what is on the video… (emphasis added)

Earlier this summer a source I trusted told me he assumed the NFL had seen the damaging video… The source said league officials had to have seen it. This source has been impeccable, and I believed the information. So I wrote that the league had seen the tape. I should have called the NFL for a comment, a lapse in reporting on my part. The league says it has not seen the tape, and I cannot refute that with certainty. No one from the league has ever knocked down my report to me, and so I was surprised to see the claim today that league officials have not seen the tape.

Again, he wrote in July that the league and team had seen the inside-the-elevator tape. Then, over a month elapsed without anybody pulling him aside and correcting him.

To understand how significant this is, you have to know Peter King’s place in the NFL universe: one of the least critical, best-connected reporters whose rolodex of sources is a close approximation of “everyone”. King regularly takes calls from, and casually calls, league sources all year. He’s widely known as a friendly mouthpiece. (This is mostly true of Mortensen as well.)

If Peter King says something that the league doesn’t think is accurate, or even something they would like to add to or clarify, to any degree, King is essentially guaranteed to receive — and take, and respond to — a call from an insider.

The last sentence from King’s Sep. 8 correction is as close to damnation as we are likely to see from him on this point. It rightfully implies that (especially coming from him), “No one from the league has ever knocked down my report to me” pretty much speaks for itself.

As if on cue for their entry as the protagonist in a Greek tragedy, management has enacted a suspension that proves Simmons’ implicit point splendidly. They’ve provided pretty good evidence that certain people (management) cannot be criticized, and that others (NFL leadership) should generally be criticized only in the most high-brow language — five dollar words only, please, and only when the evidence is incredibly overwhelming.

The suspension is feeding already-extant skepticism about the network’s ability to consistently (as opposed to intermittently) allow their talent to reach their own conclusions and share these publicly.

The message to Simmons was, undoubtedly, “You can’t criticize us publicly like this.” That is chilling enough. A substantial portion of the population, though, hears (at least in part), “You can’t criticize our content partner like this.” Even if that’s not the real motivation, the optics are (to quote Charles Barkley) just turrible.

This is where an Ombudsman is supposed to provide an outsider’s corrective — a reassurance to the reader that well-founded outside criticism will always have at least one ally in the building.

The more defensible (and, in reality, motivating) reason Simmons was suspended was for dissing management. While Lipsyte alludes to this (implying that the suspension is also due to management’s “thin skin”), he opens and closes by insisting that this story is really about whether Simmons had the goods for his claim — and he concludes that Simmons didn’t have the goods.

That takes real chutzpah from somebody who substantially misrepresents the claim in question.

Even as the hordes crash at the gates in Bristol, the Ombudsman — the Ombudsman — writes to reassure us that management basically got this one right, without even deigning to rebut claims that this sure looks like a result of the network’s conflict of interest. “Obviously I disagree” with such critics is all we get. When the very integrity of the network is being questioned, blowing off those questions is tone deaf indeed.

Goodell is a liar. Simmons was correct in calling him a liar. And ESPN was some combination of corrupt and petulant to discipline him for it.

If even the Ombudsman is this tone deaf, ESPN still has a lot of tuning up to do.

1. I’m really excited about Write API. Mechaber writes “Beginning in October, third-party websites can submit signatures to We the People on behalf of their own signers, using our soon-to-be-released Write API (which is currently in beta). It’s the result of months of hard work, and we can’t wait to share it with the public.”

This looks like something genuinely new and different. One of the structural weaknesses of WeThePeople is that it doesn’t let petition-creators capture signup data and engage supporters in further actions. That creates a stumbling block. The government is both the venue for and target of these petitions, and limiting the ability of creators to build further connections with signers can short-circuit long-term efforts at political change. Write API could be a very powerful work-around. If it works right, it could be a bit like the ActBlue fundraising widget. Organizations can gather signatures, capture momentum, and then digitally deliver them to the government. The government gets citizen input without being on the hook for enabling follow-up citizen mobilization.

The big question will be whether Write API actually gets used. And it’s impossible to tell right now. I could imagine organized issue publics seizing the opportunity; I could imagine them yawning at the opportunity. But it’s definitely a worthwhile idea, and I’ll be watching with hope and interest.

2. The in-person summit is a lovely touch. Mechaber writes “To celebrate We the People’s third birthday, the White House will host the first-ever social meetup for We the People users and petition creators right here at 1600 Pennsylvania Avenue. It will be an exciting chance for users to meet with policy experts and connect with each other in person.”

I think the future of distributed petition campaigns lies in a move towards distributed organizing. Petitions are a nice, simple, flexible tool. But they’re one-dimensional if you don’t build something out of them. The first step to deepening member/supporter engagement is building new pathways for listening to them. And in-person listening, rewarding the most active participants, is an important step.

I’d be thrilled to see MoveOn.org or Change.org or Avaaz host a meetup where they connect in-person with some of their frequent participants and petition-creators. I would see it as a step towards building a deeper civic infrastructure.

Of course, I would then hope that one of those groups would treat these members as active stakeholders, and the relationship between the White House and its petitioners is fundamentally different from the relationship between MoveOn and its petitions (again, because the White House is playing dual roles as target and venue). So this social meetup has less long-term potential. But kudos for taking this step, I hope others choose to emulate it.

3. But now here’s the critique. Egads, that user survey… Mechaber reports the results from a 2014 user survey. He writes “…over the course of 2014, an average of response surveys showed a majority of signers thought it was ‘helpful to hear the Administration’s response,’ even if they didn’t agree. Nearly 80 percent said they would use We the People again.” (emphasis added)

15,559,272 people have created accounts at WeThePeople. There have been 21,882,419 total signatures. That’s… an average of 1.4 signatures per person. By the most generous possible estimate, that would be around 9 million people who signed only once, and around 6 million people who signed two times.* At the very most, only 40 percent of users have actually used WeThePeople twice in its first three years. And the actual percentage (which they can calculate, but have never made public) is probably dramatically lower than that.

So here’s the friendly birthday critique. 80% of the users who took your survey have indicated that they would use WeThePeople again**. Let’s call that the potential participatory energy in the system. Let’s call the actual percentage of users who returned a second time the kinetic participatory energy in the system. …It’s currently somewhere between 1% and 40%.

Next September, when WeThePeople celebrates its fourth birthday, I hope the kinetic participatory energy has moved closer to the potential participatory energy.

That would make it a very good year indeed.

—-

*And if we have a power law or other fat-tailed distribution of signatures (which we almost certainly do), then its more likely to be 12 million single signatures to 3 million multiple signatures, or 15 million to 1 million.

**Survey bias issue: Depending on response rate, this represents a much tinier portion of the user base. The people who would never use WeThePeople again are more likely to delete the survey invite than the people who love the thing.

Then I became convinced that there isn’t any such thing as the blogosphere anymore. Blogging is just a format for typing things and putting them online. In the early days of blogging (1999-2006ish), the subset of Internet-writers that used this format was small and relatively well networked. It made sense to talk about “the blogosphere,” because there were identifiable clusters of people using this digital tool, and they had distinct goals, priorities, and values.

But as blogging proved useful, it was adopted by more people, and adapted to a wider set of aims. Talking about “bloggers versus journalists” stopped making much sense once the New York Times and Washington Post started hosting blogs on their sites. Talking Points Memo used to be the blog of just-some-guy named Joshua Micah Marshall. Then he developed a business model and started hiring journalists. Then his site won the Polk Award for investigative journalism.

And then, of course, we started getting alternate digital formats that better supported some of the purposes that blogs used to be aimed at. Atrios (Duncan Black) and Instapundit (Glenn Reynolds) were two early influential bloggers who both stylistically chose to writes 20 or so brief posts per day. They were usually a sentence or two, with a link to something interesting. Today, most bloggers write longer posts. A couple sentences plus a link has become a tweet.

Andrew Chadwick calls this rapid dissolution of media genres “hybridity.” One of the major points he makes in The Hybrid Media System is that our newer, hybrid media system encourages nimble organizations that experiment with a wide assortment of tools and technologies.

Email action list. We’re no longer just a website, or a mobile site. Our email action list has grown so large, it’s now one of the largest in the (non-campaign) progressive movement. As of the end of August, the list is 1.6 million strong, which means it has literally doubled in size every year for the last three four years. That list gives us the ability to create massive pressure when necessary. For example, check out this report from the Sunlight Foundation on the 800,000 public comments the FCC received on its Net Neutrality plan. Of those comments that Sunlight could directly source to their sponsorship organization, fully 10 percent of them came from Daily Kos, making us the fourth largest source of pro-Net-Neutrality energy (behind CREDO, Battle for the Net, and EFF).

DailyKos.com has 1.6 million members on its email list. Those members receive daily updates on breaking stories and popular diaries at DailyKos. They also receive calls-to-action, urging them to participate in online activism. I’ve heard that DailyKos is building a field program as well, with a goal of supporting offline organizing.

There’s still blogging at DailyKos. There will always be blogging at DailyKos. And there’s still a community of diarists who use DailyKos to publish thoughts, opinions, comments, and reportage. But it no longer makes sense to talk about DailyKos as a part of “the blogosphere.” The blogosphere is a concept from ten years ago that seems to have already gone past its expiration date. DailyKos has succeeded because it has morphed from a community blog into a more complex digitally-mediated political organization.

Just when we researchers get comfortable talking about a digital phenomenon, the phenomenon itself morphs and changes into something new.